# Real Property.txt

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1. Fee Simple:
(1) Language to create
(2) Duration
(3) Transferability
(4) Future Interest
(5) NY Rules, if any
• (1) "To A" or "To A and his heirs"
• (2) Absolute ownership of potentially infinite duration
• (3) Freely divisible, descendible, and alienable
• (4) None
• (5) None
2. Fee Tail:
(1) Language to create
(2) Duration
(3) Transferability
(4) Future Interest
(5) NY Rules, if any
• (1) "To A and the heirs of his body."
• (2) Lasts only as long as there is a lineal blood descendents of grantee
• (3) Passes automatically to grantee's lineal descendants
• (4) Reversion (if held by grantor); or Remainder (if held by third party)
• (5) Called a Fee on limitation. Abolished in NY. An attempt to create one creates a fee simple absolute.
3. Fee Simple Determinable:
(1) Language to create
(2) Duration
(3) Transferability
(4) Future Interest
(5) NY Rules, if any
• (1) "To A for so long as" "To A during" "To A until"
• (2) Potentially infinite, so long as event does not occur.
• (3) Alienable, devisable, descendible but always subject to the condition.
• (4) Grantor has the possibility of revertor.
• (5) NY: called a fee on condition.
4. Fee Simple Subject to Condition Subsequent:
(1) Language to create
(2) Duration
(3) Transferability
(4) Future Interest
(5) NY Rules, if any
• (1) "To A, but if X event occurs, grantor reserves the right to retake."
• (2) Potentially infinite, so long as condition is not breached and, thereafter, until the holder of right of entry timely exercises.
• (3) Alienable, devisable, descendible but always subject to the condition.
• (4) Right of entry/Power of termination (held by grantor)
• (5) Right of entry/power of termination is called right of reacquisition. The right is freely alienable, devisable and descendible.
5. Fee Simple Subject to Executory Limitation:
(1) Language to create
(2) Duration
(3) Transferability
(4) Future Interest
(5) NY Rules, if any
• (1) "To A, but if X event occurs, then to B."
• (2) Potentially infinite, so long as stated contingency does not occur.
• (3) Alienable, devisable, descendible but always subject to the condition.
• (4) Shifting executory interest (held by a third party)
• (5) None

NOTE: An executory interest with no limit on time within which it must vest violates RAP.
6. Life Estate:
(1) Language to create
(2) Duration
(3) Transferability
(4) Future Interest
(5) NY Rules, if any
• (1) "To A for life" or "To A for the life of B" (life estate pur autre vie)
• (2) Measured by life of transferee or by some other life
• (3) Alienable, devisable, descendable, if measuring life are still alive.
• (4) Reversion (if held by grantor) or remainder (if held by third party).
• (5) None.
7. Three types of WASTE
• (1) Voluntary and Affirmative waste-actual overt conduct that causes a drop in value.
• (2) Permissible Waste or Neglect-land is allowed to fall into disrepair
• (3) Ameliorative Waste-Acts that will enhance the property's value. Not allowed unless all future interest holders are known and consent.
8. When may a life tenant consume or exploit natural resources on the property?
• [PURGE]
• (1) Prior Use–Prior to grant, land was used for exploitation; Open Mines Doctrine: life tenant may continue to mine, but is limited to mines that are already open.
• (2) Repairs;
• (3) Grant–life tenant was granted that right; OR
• (4) Exploitation–land is suitable ONLY to exploit. E.g. quarry.
9. What are a life tenant's duties re: permissible waste or neglect?
• (1) Obligation to repair–must maintain in reasonably good repair.
• (2) Obligation to pay all taxes on the land to the extent of income and profits of the land. If no income or profit, life tenant must pay all ordinary taxes to the extent of the premises' fair rental value.
10. NY Rule for Ameliorative Waste
• A mere life tenant may make improvements if:
• (1) Remaindermen do not object;
• (2) Proposed change does not violate any agreement regulating the conduct of the life tenant;
• (3) Life estate or term of years is ≥ 5 years;
• (4) Life tenant serves each future interest holder written notice of any proposed change at least 30 days prior to commencement of any work.
11. What is a REVERSION?
A future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent.
12. Three Future Interests Capable of Creation in the GRANTOR
• (1) Possibility of Revertor–accompanies only fee simple determinable
• (2) Right of Entry–accompanies only fee subject to condition subsequent.
• (3) Reversion
13. Three Future Interests in TRANSFEREES
• (1) Vested remainder
• (2) Contingent remainder
• (3) Executory interest
14. What is a REMAINDER?
A future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
15. When is a remainder VESTED?
When it is both created in an ascertained person and is not subject to any condition precedent.
16. When is a remainder CONTINGENT?
If it is created in an unascertainable person or is subject to a condition precedent, or both.
17. Contingent remainder–what is it called once the condition is met?
An indefeasibly vested remainder.
18. Rule of Destructibility of Contingent Remainders
• Common law–contingent remainder is destroyed if it was still contingent at the time the preceding estate ended. NY–ABOLISHED this rule
• NY and Modern Rule: Reverts back to O and O's heirs who holds it subject to a condition precedent.
19. Rule in Shelley's Case
While A is alive, O conveys "To A for life, on A's death, to A's heirs."

• Common law: Rule of law gives A a fee simple absolute. ABOLISHED in NY.
• NY and Modern Rule: A has a life estate. A's as yet unknown heirs have a contingent remainder. O has a reversion since A could die without heirs.
20. Doctrine of Worthier Title
O is alive and conveys, "To A for life, then to O's heirs."

• Common law rule: Rule of construction: A has a life estate and O has a reversion. Abolished in NY after 9/1/1967.
• NY and Modern Rule: A has a life estate. O's heirs have a contingent remainder.
21. Three Kinds of Vested Remainders
(1) Indefeasibly Vested Remainder–certain to acquire estate in the future, with on conditions attached

(2) Vested Remainder Subject to Complete Defeasance–Remainderman's right to possession could be cut short because of a condition subsequent. NY: Called a remainder vested subject to complete defeasance

(3) Vested Remainder Subject to Open–remainder is vested in a group of takers, at least one of whom qualifies for possession, BUT each class member's share is subject to partial diminution because additional takers could join in.
22. When does a class close?
Rule of Convenience: class closes whenever any member can demand possession. EXCEPTION: womb rule.
23. Shifting Executory Interest
Always follows a defeasible fee and cuts short someone other than grantor.

NY RULE: abolishes the distinction between executory interests and contingent remainders. Both are called remainders subject to condition precedent.
24. What is a Springing Executory Interest?
Cuts short the grantor.

NY RULE: abolishes the distinction between executory interests and contingent remainders. Both are called remainders subject to condition precedent.
25. Four Step Technique to Assessing Potential RAP Problems
(1) Determine which future interests have been created by the conveyance. RAP only applies to contingent remainder, executory interests, and certain vested remainders subject to open.

(2) Identify the conditions precedent to the vesting of the suspect future interest.

(3) Find a measuring life. Look for a person alive at the date of the conveyance and ask whether that person's life or death is relevant to the condition's occurrence.

(4) Will we know for sure within 2 years of the death of our measuring life if our future interest holder(s) can take? If yes, conveyance is good. If not, violates RAP and interest is void.
26. Fertile Octogenarian Rule
Presumes a person is fertile, regardless of age.

NY Reform Statute: presumption that women over 55 cannot have children. Men ≥ 14 can have children. Possibility of adoption is ignored.
27. Exceptions to RAP
RAP does not apply to future interests in grantor, indefeasibly vested remainders or vested remainders subject to complete defeasance.

Charity to charity exception–a gift from one charity to another will not violate RAP.
28. "Wait and See" and "Second Look" Doctrine
Validity of suspect future interest is determined on the basis of facts as they now exist at the end of our measuring life.

NY: Only available for charitable trusts and powers of appointment.
29. Cy pres doctrine
"As near as possible"–if a given disposition violates the rule, court may reform it in a way that most closely matches grantor's intent, while complying with RAP. Used in "wait and see" and USRAP.

NY: Only available for charitable trusts and powers of appointment.
30. Uniform Statutory Rule Against Perpetuities (USRAP)
Codifies common law RAP and provides for an alternative 90-year vesting period. Not adopted in NY.
31. NY Perpetuities Reform Statute
• Presumption that creator intended to create a valid interest.
• NY applies common law RAP. Rejects "wait and see" and cy pres except for charitable trusts and PoAs.
• Age contingency is automatically reduced to 21 years.
• Modified Fertile Octogenarian rule: women over 55 cannot have children.
• Unborn widow–presumption that reference to a spouse widow or widower in the will references the person in being at the effective date of the instrument.
• NY Suspension Rule
32. What is the NY Suspension Rule?
Applies common law RAP to restrictions on power to sell or transfer. An interest is void if it suspends the absolute power of alienation for a period longer than LIB plus 21 years.
33. Requirements for Creation of a JOINT TENANCY
• (1) Four unities [T-TIP]: At the same TIME, by the same TITLE, with identical INTERESTS, and the right to POSSESS the whole;
• (2) Grantor must clearly express the right to survivorship;
• (3) Use of a straw: (a) Convey to straw; (b) Straw conveys back to co-tenants as joint tenants with right of survivorship. [Not required in NY]
34. Ways to sever a JOINT TENANCY
• (1) Severance and Sale
• (2) Severance and Partition
• (3) Severance and Mortgage–
35. Joint Tenancy: SEVERANCE AND SALE
Joint tenant may sell or transfer her interest during her lifetime without the others' knowledge or consent. New buyer is a tenant in common. Joint tenancy remains intact between the other non-transferring joint tenants.

Doctrine of Equitable Conversion–joint tenant's act of entering into a contract for the sale of his share will sever the joint tenancy as to the contracting party's interest.
36. Joint Tenancy: SEVERANCE AND PARTITION
• Severance by:
• (1) Voluntary agreement.
• (2) Partition in Kind–court action for physical division of property, if in the best interests of all.
• (3) Forced sale–court action, if in the best interests of all. Property is sold and proceeds distributed proportionately.
37. Joint Tenancy: SEVERANCE AND MORTGAGE
Title Theory (Minority Rule)–one joint tenant's execution of a mortgage or a lien on his share will sever the joint tenancy as to that now-encumbered share.

Lien Theory (NY and Majority Rule)–Joint tenant's execution of a mortgage on his interest will NOT sever the joint tenancy.
38. Tenancy by the Entirety:

Creation
Protections
Severance
Marital interest between married partners with the right of survivorship. Arises presumptively in any conveyance to married partners, unless stated otherwise.

• Protections:
• Common Law: Creditor of one spouse cannot touch this tenancy.
• NY RULE: One spouse may mortgage his interest, and his creditors may enforce that interest but only as to the debtor-spouse's share. The non-debtor spouse's rights must not be compromised.
• Unilateral Conveyance–Neither tenant, acting alone, can defeat the right of survivorship by a unilateral transfer to a third party.

• Termination at Common Law: only death, divorce, mutual agreement or execution by a joint creditor of both spouses can sever.
• NY RULE: Termination may only be by voluntary partition, conveyance signed by both parties or divorce. Dissolution of marriage based on five-years absence does not terminate. Either spouse may sue for waste.
39. Tenancy in Common
Two or more own, with no right of survivorship. Presumption favors tenancy in common.

• Each co-tenant owns an individual part with a right to possess the whole.
• Each interest is divisible, descendable, and alienable.
40. Co-Tenancy Rules
• (1) Each co-tenant is entitled to possess the whole;
• (2) If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed wrongful ouster.
• (3) Rent from Co-Tenant in Possession–absent ouster, a co-tenant in exclusive possession is not liable to others for rent.
• (4) Rent from Third Parties–A co-tenant who leases all or part of the premises to a third party must account to his co-tenants, providing them their fair share of the rent income.
• (5) Adverse Possession–absent ouster, one co-tenant's exclusive possession is not adverse possession. NY RULE: A co-tenant may acquire full title by adverse possession if he is in exclusive possession for 20 continuous years.
• (6) Carrying Costs = taxes and mortages. Each co-tenant is responsible for his fair share of carrying costs, based upon the undivided share that he holds.
• (7) Repairs–repairing co-tenant has a right to contribution for necessary repairs provided that she had told the others of the need. Each co-tenant must contribute the undivided share that he holds.
• (8) Improvement–No right to contribution of improvements during life of co-tenancy. At partition, co-tenant is entitled to credit equal to increase of value caused by her efforts. She also bears full liability for any drop in value.
• (9) Waste–A co-tenant must not commit waste. A co-tenant can bring an action for waste during the life of the co-tenancy.
• (10) Partition–A joint tenant or tenant in common has a right to bring an action for partition.
41. What is a TENANCY FOR YEARS?
Lease for a fixed period of time. Termination date is known from the start. No notice needed to terminate.
42. What is a PERIODIC TENANCY?
Open-ended, continuous lease which continues for successive intervals until L or T gives proper notice of termination.
43. What is an IMPLIED PERIODIC TENANCY?
• Created when:
• (1) a lease says nothing about duration and tenant pays rent at a regular interval; or
• (2) in a residential lease, landlord elects to holdover a tenant who wrongfully stays past the conclusion of the original lease.
• NY RULE: Landlord who elects to holdover a tenant created an implied month-to-month periodic tenancy, unless otherwise agreed.

Period is measured by the way rent is tendered.
44. How to terminate a PERIODIC TENANCY?
• Notice, usually written, must be given. The periodic tenancy must end at the conclusion of a natural lease period.
• COMMON LAW: Notice must be given at least equal to length of period itself unless otherwise agreed.
• EXCEPTION: If period is one year or greater, only 6 months notice is required.

NOTE: Parties can shorten or lengthen notice period by private agreement.
45. What is a TENANCY AT WILL?
• Tenancy for no fixed period of duration.
• Unless parties expressly agree at a tenancy at will, the payment of regular rent will cause a court to treat this as an implied periodic tenancy.
46. How to terminate a TENANCY AT WILL?
May be terminated at any time. A reasonable demand to vacate is usually needed.

NY: L terminating a tenancy at will must give at least 30 days written notice of termination.
47. List the Tenant's Duties
• (1) Liability to Third Parties
• (2) Duty to Repair
• (3) Duty to Pay Rent
48. Is a Tenant Liable to Third Parties?
As a matter of tort law, tenant is responsible for keeping the premises in reasonably good repair.

Tenant is liable for injuries sustained by third parties and invited, even where landlord expressly promised to make all repairs.
49. What is TENANCY AT SUFFERANCE?
T has wrongfully held over past the expiration of the lease. Wrongdoer has a leasehold estate to permit landlord to recover rent.
50. Termination of a TENANCY AT SUFFERANCE
Lasts until L either evicts T or elects to hold T to a new tenancy.

NY NOTE: Landlord's acceptance of rent subsequent to expiration of the term will create an implied month-to-month periodic tenancy, unless otherwise agreed.
51. Tenant's Duty to Repair When Lease Is Silent
• (1) Tenant must not commit waste;
• (2) Law of Fixtures–fixtures pass with ownership of the land. Tenant must not remove a fixture even if he installed it. Removal of a fixture is voluntary waste. (separate card)
52. What is a FIXTURE?
A once removable chattel that, by virtue of its annexation to realty, objectively shows intent to permanently improve the realty.
53. How to tell if a tenant installation qualifies as a FIXTURE?
• LAW OF FIXTURES:
• (1) Express agreement between L and T on point controls;
• (2) In absence of agreement, T may remove a chattel that she installed so long as removal does not cause substantial harm to the premises.
• (3) If removal will cause substantial damage, then in objective judgment, T has shown the intent to install a fixture. The fixture stays put.
54. T's Duty to Repair with Express Covenant
• Common Law–T was liable for any loss to the property, including any loss due to forces of nature.
• Majority View–T may terminate lease if premises was destroyed without T's fault.
• NY Law: Absent T's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of the tenant, tenant may quit the premises and surrender possession without any further duty to pay rent.
55. T's Duties to Pay Rent
• If T remains in possession: L's only options are:
• - Evict through the courts. L is entitled to rent from the tenant (now a tenant at sufferance) until tenant vacates; OR
• - Continue the relationship and sue for rent due.

• If tenant is out of possession: [SIR]
• (1) Surrender–L can treat T's abandonment as an implicit offer to surrender;
• (2) Ignore the abandonment and hold T responsible for unpaid rent, just as if T is still there. Only available to a minority of states.
• (3) Re-let the premises on the wrongdoer tenant's behalf and hold him liable for any deficiency.

• Majority Rule: L must at least try to re-let.
• NY Rule: NY does not require L to mitigate damages when tenant abandons the premises.
56. List Landlord's Duties
• (1) Duty to deliver possession
• (2) Implied covenant of quiet enjoyment
• (3) Implied warranty of habitability
57. Rule on SELF HELP
Landlord must NOT engage in self-help. Punishable civilly and criminally.

NY RULE: Self-help is flatly prohibited and entitles tenant to treble damages.
58. Landlord's Duties: DUTY TO DELIVER POSSESSION
English (Majority) Rule: Requires L to put T actual physical possession of the premises. Thus, if at the start of T's lease, prior holdover T is still in possession, L has breached and the new T gets damages.

American (Minority) Rule: L does not have to provide physical possession to T. L need only provide T with legal possession.
59. Landlord's Duties: Implied Covenant of Quiet Enjoyment
• Applies to both residential and commercial leases.
• T has right to quiet use and enjoyment without interference from L.
• Breach by wrongful eviction–when L wrongfully evicts or excludes T from possession.
• Breach by constructive eviction [SING]–
• -Substantial Interference due to L's actions or failure to act–regularly recurring or chronic condition.
• -Notice–T must notify L of the problem, and L must fail to respond meaningfully.
• -Goodbye–T must vacate within a reasonable time after L fails to fix the problem.
60. Landlord's Duties: Breach by Constructive Eviction
• Breach by constructive eviction [SING]–
• -Substantial Interference due to L's actions or failure to act–regularly recurring or chronic condition.
• -Notice–T must notify L of the problem, and L must fail to respond meaningfully.
• -Goodbye–T must vacate within a reasonable time after L fails to fix the problem.
61. Landlord's Liability for Acts of Other Tenants
• Landlord not liable for acts of other tenants. EXCEPTION:
• (1) L must not permit a nuisance on site;
• (2) L must control common areas.
62. Landlord's Duties: IMPLIED WARRANTY OF HABITABILITY
• NOT WAIVABLE
• Applies ONLY to residential lease
• Standard–premises must be fit for basic human habitation. Std. may be supplied by local housing code or case law.
• T's Entitlements if L Breanches–[MR^3]
• -Move out and terminate lease;
• -Repair and deduct their cost from cost of future event (allowable by statute in a growing # of jurisdictions);
• -Reduce rent or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent into an escrow account to show her good faith.
• Remain in possession, pay rent and affirmatively.
63. RETALIATORY EVICTION
If T lawfully reports L for housing code violations, L is barred from penalizing T. L cannot raise rent, end lease, harass T or take other reprisals.
64. Rules re: ASSIGNMENT
• In the absence of some prohibition in the lease, T may freely transfer interests in whole.
• In the lease, L can prohibit T from assigning without L's prior written approval. However, once L consents to one transfer by L, L waives the right to object to future transfer by that T, unless L expressly reserves the right.
• NY RULE: Unless lease provides otherwise, residential T may not assign without L's written consent. L can unreasonably withhold consent to assign. T's sole remedy is to seek release from the lease.
65. Rules re: SUBLEASE
• In absence of some prohibition in the lease, T many freely transfer his interest in part.
• In the lease, L can prohibit T from subletting without L's prior written approval. However, once L consents to one transfer by L, L waives the right to object to future transfer by that T, unless L expressly reserves the right.
• NY RULE: A tenant in a building with four or more units has the right to sublease, subject to L's written consent. Consent to sublease cannot be unreasonably withheld.
66. Privity in Assignment: L and T1 have a lease. T1 transfers remaining term to T2.
• L and T2 are in privity of estate. They are liable to each other for all covenants in the original lease that "run with the land."
• L and T2 are NOT in privity of contract, UNLESS T2 assumed all promises in the original lease.
• L and T1 are no longer in privity of estate. L and T1 are secondarily liable to each other under privity of contract.
67. Privity in Assignment: L and T1 have a lease. T1 transfers remaining term to T2. T2 then transfers to T3.
• L and T3 are in privity of estate.
• L and T1 are secondarily liable to each other under privity of contract.
• L and T2 share no nexus.
68. Privity in Sublease
• L and sublessee are in neither privity of estate nor privity of contract.
• T1 is responsible to T2 and vice versa.
• The original relationship between L and T1 remains fully intact.
69. Landlord's Tort Liability
• Common law: caveat lessee. L has no duty to make premises safe.
• EXCEPTION: [CLAPS]
• (1) Common areas–L must maintain all common areas.
• (2) Latent defects rule–L must warn T of hidden defects that L knew or should have known about.
• (3) Assumption of repairs–L volunteers to make repairs. L must complete them with reasonable care.
• (4) Public Use Rule–L who leases public space and should know that T will not repair because of nature of defect and length of lease.
• (5) Short term lease of furnished dwelling–L is liable for any defect on-site.
70. Categories of Negative Easement
• [LASS]
• Light
• Air
• Support
• Stream water from an artificial flow
• Minority of states recognizes scenic view as a fifth category.
71. Enforceability of oral easement
Oral easements are unenforceable under Statute of Frauds. Oral easement creates a freely revocable at the will of the licensor, unless estoppel applies to bar revocation.
72. Easement Appurtenant: Definition and Transferability
Definition: Grant of non-possessory property interest that benefits its holder in his physical use or enjoyment of his property. Two parcels are implicated–dominant tenement and servient tenement.

Transferability: Passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance. Burden of easement appurtenant also passes automatically with the servient estate, unless the new owner is a BFP without notice.
73. Easement in Gross: Definition and Transferability
Definition: Grant of non-possessory property interest that confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Servient land is burdened. There is no benefitted or dominant tenement.

Transferability: An easement in gross is not transferable unless it is for a commercial purpose. [KNOW FOR EXAM!!!]
74. Ways of Creating an AFFIRMATIVE EASEMENT
• [PING]
• Prescription–satisfy the elements of adverse possession [COAH]
• Implication–"easement implied from existing use": (1) Previous use had been apparent; AND (2) Parties would expect the use would survive division because it is reasonably necessary to dominant land's use and enjoyment.
• Necessity–landlocked setting: grantor conveys a portion of his land with no way out except over grantor's remaining land.
• Grant–Deed of easement: An easement to endure for > 1 year must be in a writing that has all formal elements of a deed to comply with SOF.
75. NY Statutory period of ADVERSE POSSESSION
10 years
76. How to determine scope of an easement
Scope is set by the terms of grant or condition creating it. Unilateral expansion is not allowed.
77. Termination of an Easement
• [END CRAMP]
• Estoppel–servient owner materially changes his position in reasonable reliance on the easement holder's assurances that the easement will not be enforced.
• Necessity–Easements created by necessity expire as soon as it ends. HOWEVER, if the easement attributable to necessity was created by express grant, it won't end when the necessity ends.
• Destruction of the servient land–other than through willful conduct by servient owner
• Condemnation of the servient estate by eminent domain
• Release–written release, given by easement holder to servient holder
• Abandonment–easement holder must demonstrate by physical action the intent to never use the easement again.
• Merger Doctrine–unity of ownership
• Prescription–[COAH] servient owner interferes with the easement in accordance with elements of adverse possession.